IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAPHOKA
MAKARA (born MAKOSHOLO) Applicant

and

MOTSOAKAPA
MAKARA Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 19th day of
November, 1990

This is
an application for an order in the following

"1. That rule nisi do hereby issue calling upon

Respondent to show-cause, if any, why:-

(a) Respondent shall not be interdicted

forthwith from taking the children and causing them to live out of
Lesotho pending the determination of CIV/T/191/90;

(b) Respondent shall not be directed to release to Applicant
forthwith Applicant's personal belongings and clothes pending the

determi­nation of CIV/T/191/90;

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(c) The custody of the minor children shall not be granted to
Applicant pending the determination of CIV/T/191/90;

(d) Respondent shall not be ordered to maintain Applicant and the
children in the sum of M200-00 per month for Applicant and M100-00

per child per month pending the determination of CIV/T/191/90;

(e) Respondent shall not be directed to pay contribution in the sum
of M600-00 towards Applicant's legal fees;

(f) Respondent shall not be directed to pay the costs hereof.

2. That
prayers 1 (a) and (b) operates with immediate effect as a temporary
interdict."

To-day is
the extended return day of the rule nisi that was granted on the 8th
June, 1990.

It is
common cause that the applicant and the respondent were married by
civil rites in community of property on the 5th January,
1980 at
Mafeteng and that the marriage still subsists. There are two minor
children born of the marriage presently in the custody
of the
respondent. They are: Ntsilane, a girl born on the 19th May, 1980 and
Liphophi, a girl born on the 21st June, 1982.

It is
common cause that there are judicial separation proceedings pending
in this Court instituted by the applicant

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and
divorce proceedings instituted by respondent. On the 13th April, 1990
the respondent caught the applicant red-handed at their
marital home
with another man at night. At about 8.00 p.m. on the 14th May. 1990
the respondent expelled the applicant from their
marital home and
took her to her brother's home at the Agric College.Maseru.However,
the respondent's version is that because the
applicant continued
associating and consorting with her paramour even after they were
caugnt inflagrante delicto in his house,
he decided to take her to
her maiden elders for proper counselling.

In her
founding affidavit the applicant deposes that when the respondent
expelled her he, did not allow her to take all her personal

belongings and clothes. She was also forced to leave the minor
children with the respondent. The respondent has on about two
occasions
told her that he cannot release her personal belongings and
clothes because all the property she acquired during the subsistence

of the marriage belongs to him because they are married in community
of property. The respondent denies this allegation and deposes
that
the applicant took all her personal belongings and clothes when she
left. Nonetheless, at the hearing of this application
Mr. Mahlakeng.
attorney for the respondent, admitted that two parcels were left
behind. It is not clear whether those parcels were
subsequently
handed over to the applicant.

The
applicant deposes that she has been reliably informed and verily
believes that the respondent is about to take their minor children

out of Lesotho to live with her sister who stays

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in the
Republic of South Africa with the sole purpose of denying her their
custory in the light of the proceedings in CIV/T/191/90.
The
applicant has denied this allegation. In her replying affidavit the
applicant alleges that since the launching of this application
she
has been to her children's school at Katlehong Primary School and she
found out that the registration of her children for the
next term had
been cancelled by the respondent because he wanted to take the
children to the Republic of South Africa to attend
school there. This
is hearsay evidence. I am of the view that when this application was
launched as an urgent matter the applicant
was entitled to rely on
hearsay evidence. But when she prepared her replying affidavit the
matter was no longer urgent because
she had an interdict in her
favour. She had the chance to go to her children's school to verify
that the children were about to
be taken out of this country. She has
not obtained any supporting affidavit from the Principal of the
school concerned from whom
she apparently got the information about
the cancellation of her children's registration.

If it is
true that the children's registration was cancelled by the respondent
the person who did the cancellation would probably
be in a position
to tell the Court the reason why the respondent was cancelling the
registration. I am unable to decide this point
on affidavits.

The
applicant deposes that the interests of her children will be better
protected by her as their mother and not by respondent's
sister. In
answer to this allegation the respondent alleges that the applicant
is not a fit and proper person to be

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awarded
the custody of their children.He alleges that she

is a
person of loose morals as evidenced by the incident of

the 13th
April, 1990. He alleges that any further or continued exposure of his
children to such behaviour would cripple their moral
unbrining. He
deposes, further that applicant's illicit affair with her current
paramour is not the first of its kind. She will
pay more attention to
her illicit love affairs to the detriment of well being, moral
educational needs of their children. I think
these wild allegations
that the applicant has had other lovers before the present incident
ought to have been more specific by
giving names of such lovers. In
any case I do not think that at this stage it is necessary to decide
whether or not the applicant
is a fit and proper person to be awarded
the custody of the minor children.

Lastly
the applicant deposes that the children and she are in need of
maintenance by the respondent pendente lite in the sum of
M100 per
child per month and M200 per month for herself. It is not disputed
that the respondent is able to provide for their maintenance
and to
contribute towards appli­cant's legal fees.

Although
there are some disputes of fact, I am of the opinion that the matter
can be decided on the facts admitted by the parties
and on the law
regarding those admitted facts. It is common cause that on the 13th
April, 1990 the applicant was caught red-handed
by the respondent at
their marital home with another man. I understand this to mean that
she was caught under compromising circumstances
which sugested that
she had just

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committed
adultery with that man or was about to do so. The applicant is
therefore guilty of a very serious misconduct which goes
to the root
of their marriage.

In Du
Plooy v. Du Plooy, 1953 (3) S.A. 848 the headnote reads as follows:-

"In an application for a contribution towards the costs of a
matrimonial action, custody of a minor child and maintenance
pendente
lite, what the applicant has to lay before the Court are facts
whereon she, should such facts be proved, would succeed
in the main
action. Should it appear from the respondent's refutation of such
facts that she cannot succeed in the main action,
or that the
possibility that she will succeed is so small that the hearing of the
main action would not be justified, then she
fails to discharge the
onus and has no claim to a contribution towards costs nor to an order
pendente lite in regard to maintenance
or the custody of the minor
child. Should she succeed in discharging the onus on her, the
deciding factor, as regards her claim
for the custody of the minor
child pending the main action, is what will be in the best interests
of the child."

The same
point was expressed by Schreiner, J. in Butterworth v. Butterworth,
1943 W.L.D. 127 at p. 131 in the following words:-

"The weight of authority seems to me to be in favour of the view
that it is necessary for the applicant to show that she has
a
reasonable, and not a merely bars or remote, chance of success, but
that such proof is sufficient even if there is a substantial

balance of probability against her."

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In the
instant case the trial court in the main actions of judicial
separation and divorce is likely to find that the applicant
is guilty
of adultery and that her main action for judicial separation is not
likely to succeed because she has admitted that she
was caught
red-handed with another man at night in her marital home. It seems to
me that the applicant has failed to wake out a
prima facie case.

As far as
the custody of the minor children pendente lite is concerned there is
another factor that weighs in favour of the respondent.
He has not
done anything wrong which entitles this Court as the upper guardian
of minor children to deprive him of his children's
custody. In Calitz
v. Calitz 193S A.D. 56 at p. 64 Tindall, J.A. said:

"The non-existence of the common home, brought about as it has
been by the wife's unlawful desertion is not a factor which
a Court
of law can allow to operate in her favour on the question of the
custody of the child. As the learned Judge found that
she had no just
ground for leaving her husband, her duty is to return to him and look
after her child under his roof.

That being the position, it is clear that the Court was not entitled
to deprive the husband of the custody. The learned Judge held
that he
was a fit and proper person to have the custody. The father had done
nothing which entitled the Court in the exercise of
its powers as
upper guardian to hold that he had forfeited his right to the custody
of the child. The fact that the child, being
of tender years, would
be better looked after by the mother did not, under the
circumstances, justify the order made."

It seems
to me that the respondent cannot be blamed for the expulsion of the
applicant because she was guilty of a very serious
misconduct. I do
not mean that he was entitled to take the law into his own hands.
Staying with a wife who has comitted

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adultery
may make cohabitation intolerable and impossible. The respondent does
not seem to have used any physical force in the expulsion
of the
applicant from the marital home.

For the
reasons given above I am of the view that the question of maintenance
pendente lite and contribution towards applicant's
legal fees must
also fail. Furthermore the appli­cant is not in need of support.
She earns a salary of M700 per month and that
is enough for her
maintenance I think it is also enough for her legal fees.

In the
result orders (a), (c), (d), (e) and (f) of the rule nisi are
discharged. Order (b) is confirmed to the extent that the two
parcels
which were left behind should be released to the applicant if they
have not yet been released to her. The applicant shall
pay four
fifths (4/5) of the respondent's costs.

J.L.
KHEOLA JUDGE

19th
November, 1990.

For
Applicant - Mr. Pheko

For
Respondent - Mr. Mahlakeng.